Delhi District Court
Sh. P.N. Kumar vs Smt. Maya Devi (Since Deceased) on 30 July, 2010
IN THE COURT OF SH. SAMAR VISHAL, CJ02 (NORTH), DELHI
SUIT NO. 637/93
MEMO OF PARTIES
1.Sh. P.N. Kumar, Advocate
2. Smt. Om Kumari, W/o Sh. P.N. Kumar through P.N. Kumar Advocate, Both R/o 5S(909), Kidar Building, Clock Tower, Delhi07. Plaintiff ...........
Versus
1. Smt. Maya Devi (since deceased) through LR's Sh. Narinder Kumar Jain S/o Sh. Makhan Lal Jain, 82B, Mehar Apartments, Anstey Road, Bombay.
2. Sh. Narinder Kumar Jain S/o Sh. Makhan Lal Jain, 82B, Mehar Apartments, Anstey Road, Bombay.
3. Sh. Mahabir Prasad, S/o Sh. Goverdhan Dass, L14 (892), Kidar Building, Subzi Mandi, Clock Tower, Delhi07. Defendants.....
SUIT FOR PERPETUAL INJUNCTION
Suit No.637/93 1
Date of institution of Suit: 16.11.1993
Date on which judgment was reserved: 17.07.2010
Date of announcement of Judgment: 30.07.2010
Judgment
This is a suit for permanent injunction filed by Sh. P.N. Kumar and Smt. Om Kumari against the defendants.
Plaintiff's Case (Plaint story as filed in the year 1993) Plaintiffs are the owners of the property bearing no.5S (909) Kidar Building, Subzi Mandi, Delhi07 shown as A in the site plan Ex.P2. Defendants are the owners of the property no. 882, Kidar Building, Subzi Mandi, Clock Tower Delhi07 which is adjacent to the property owned by the plaintiffs. It is shown as B in the site plan Ex. P2. In between the property of the plaintiffs and the defendants i.e. Mark A and B in the site plan there exists a common passage marked as C in the site plan. The property of the plaintiffs, shown as A in the site plan has one lofty(Miani) situated on the rear side. The only approach to reach the said lofty (miani) is through the common passage marked as C. Both the lofty(miani) and the common passage existed prior to the purchase of the property in the very manner as today alongwith stairs and the expended slab. Part of the said stairs touches the slab which is the only approach/passage to the lofty(miani) owned and in possession of the plaintiffs and the stairs over the slab side leads to the terrace of the defendants. Thus both the parties are enjoying and making use of the common passage freely and without any hindrance from either side. The defendants besides this common passage have another approach and way to reach the terrace from the rear side of their building. Whereas the plaintiffs have egress or ingress to the lofty (miani) owned and possessed by them through the common passage marked as C in the site plan. The complete sanitary and drainage system lies in the said passage and there exists drainage Suit No.637/93 2 tank/sewer and nallies, water connection feeding the building, owned by the plaintiffs. The drainage tank/sewer falling on the common passage discharges the water pertaining to the plaintiffs property, which is necessary for the existence, maintenance and its safety. For the purpose of the safety, a common steel gate was got fixed by the parties jointly and it is provided with a lock of which keys were with both the parties. The only passage or approach to the lofty (miani) and the sanitary drainage system is through the common passage shown as C. The plaintiffs are using the common passage both for the purposes of egress and ingress to the lofty (miani) and the maintenance of the sanitary and drainage system. The plaintiffs are keeping the passage clean through the services of the sweepers. The said common passage is being used by the plaintiffs ever since 7/8th May, 1979, that is since the date of purchase of the property. The plaintiffs came to know that the defendants are selling or in the process of selling their property and the plaintiffs apprehend that they may sell the same showing that the common passage is exclusively owned by them. To achieve their illegal objective with malafide and motivated intentions, defendants have started creating hindrances in the free movement of the plaintiffs for the last about two weeks. The plaintiffs had been and have been actually enjoying undisturbed use of the passage ever since the purchase of the said property i.e. 7/8th May, 1979 and as much as they have acquired a prescriptive right of passage/way to lofty (miani) from the common passage shown as C in the site plan. There is a continuous undisturbed use of the passage for more than 12 years. The right of the plaintiffs are also protected under the provisions of Easement Act.
Defendant's Case Defendants no.1 & 2 have filed their written statement alleging that;
1. Defendant no.3 has been unnecessarily impleaded as a party to the present suit. The suit is bad for misjoinder of defendant no.3.
Suit No.637/93 3
2. Plaintiffs have not come to the Court with clean hands and filed the present suit by concealing material facts. Had the plaintiffs disclosed the sale deed alongwith the plan attached, the plaintiffs could not have pleaded the passage marked C as a common passage. As per the aforesaid sale deed, the defendants no.1 & 2 did not transfer any right, title and interest to Smt. Ram Rakhi and Sh. Hari Chand Kumar in the passage which continued to be the property of defendants no.1 & 2. Defendants no.1 & 2 alongwith Sh. Rajinder Kumar Jain had sold half flat No.5S(909), Kidar Building, Subzi Mandi, Delhi to Smt. Ram Rakhi aleas Pritam Devi wife of Sh. Hari Chand Kumar and Sh. Hari Chand Kumar S/o Sh. Jwala Ram vide sale deed dated 7.5.1979. The plan of the property was attached with the sale deed and the boundaries of the property sold were clearly mentioned as under: North Passage of owner's building South Main Bazar East Common Passage West Portion of Sh. Balkrishan Om Parkash.
The plaintiffs have intentionally and deliberately described the passage of owners building situated on the North of the property sold to the aforesaid Smt. Ram Rakhi and Sh. Hari Chand Kumar with oblique motives as common passage. The plaintiffs have nowhere disclosed in the plaint how they became the owners of the property bearing no. S5 (909) Kidar Building, Subzi Mandi, Delhi nor they have disclosed how the property devolved upon them whether by way of sale, gift or exchange or by Will.
3. It is denied by the defendants that plaintiffs have any right, title and interest on the passage marked C in the site plan. The passage marked C shown in the site plan is also the part and parcel of the property bearing Municipal No.882 and 883. It is denied Suit No.637/93 4 by the defendants that the property owned and purchased by the plaintiffs has one lofty (miani) situated on the rear side. However, it is admitted by the defendants that the property which was sold to Ram Rakhi and Hari Chand Kumar had a miani but no right was given to the aforesaid vendees by the defendants no.1 & 2 to approach the said miani from the passage owned by the defendants no.1 & 2. The aforesaid vendees were bound to provide their own passage from the property purchased by them. The access to the miani can be provided from the property sold and defendants no.1 & 2 to Smt. Ram Rakhi and Hari Chand Kumar. The passage marked C in the site plan was never the common passage and the defendants no.1 & 2 continued to be the exclusive owner of the said passage till they sold the property no. 882 and 883, Kidar Building, Subzi Mandi, Delhi.
4. It is also denied that both the parties are enjoying and making use of the common passage. The plaintiffs have no right to use the said passage and plaintiffs are neither using nor used the said common passage. It is also denied that the egress and ingress to the lofty (miani) through the common passage can only be done through a common passage marked as C in the site plan. However, the defendants have admitted that the drainage system of plaintiff passes through the said passage but the defendants no.1 & 2 never transfered any right to the aforesaid Ram Rakhi and Hari Chand Kumar over the passage. So far as the sewer lines and nallies etc. are concerned, the defendants no.1 & 2 never intended and do not intend to interfere with the same.
5. The defendants have also denied that any steel gate was got fixed by the parties jointly or that each party was having the keys for the free use of the same. It is alleged that the said gate was provided by the defendants no.1 & 2 and the keys are also in possession of them.
Suit No.637/93 5
6. It is also denied that the plaintiffs have acquired any easementary right to enjoy the said passage or the use of said passage because no such prescriptive right can be acquired by Ram Rakhi and Hari Chand Kumar as the property was sold by the defendants no.1 & 2 in the year 1979.
With these assertions, the defendants have requested that the suit be dismissed. In replication, there is a denial of material allegations made in the written statement as well as repetition of plaint averments.
In this case following issues were framed;
1. Whether the plaintiff is owner of property bearing no. 5S(909) Kidar Building, Subzi Mandi, Delhi07? OPP.
2. Whether the portion shown at mark C in the common passage up to lofty(miani) as alleged in prayer clause? OPP.
3. Whether the plaintiff is entitled for the decree of permanent injunction as prayed in prayer clause? OPP.
4. Relief.
In order to prove his case, plaintiff has examined himself as PW1. On the other hand defendant has examined Sh. Prem Sagar Gupta as DW1. Documentary evidence has been filed by both the parties.
I have heard counsel for plaintiff Sh. Anurag Kumar and counsel for defendant Sh. Sanjay Aggarwal and gone through the records of the case.
My issuewise findings are as follows;
Issue no.1 Whether the plaintiff is owner of property bearing no. 5S(909) Kidar Building, Subzi Mandi, Delhi07? OPP.
To prove this fact, plaintiff has examined himself as plaintiff witness. He has deposed in Suit No.637/93 6 his examination in chief by way of affidavit that;
" His parents Smt. Ram Rakhi @ Smt. Pritam Devi and Sh. Hari Chand Kumar, purchased on 7.5.1979 the property bearing No.5S (909), Kidar Building, Clock Tower, Subzi Mandi, Delhi07 which was under their tenancy since 1934. The property consists of one godown, two shops, a reading room on the ground floor and lofty (miani) in betwen ground and first floor, two rooms, store verandah, kitchen, bath, latrine, court yard, stairs on the first floor and two rooms (barsati) with open terrace on verandah and on the store and kitchen on the one side and on the bath and latrine on the other on the second floor, with common staircase from ground floor to first floor. The property in question was purchased vide registered sale deed dated 7.5.1979. The original sale deed is produced in the Court and the certified copy of which is Ex.P1".
The plaintiff has placed on record the sale deed in favour of his parents and stated that he is the son of Ram Rakhi and Hari Chand Kumar who has purchased the property. It is the case of the defendants also that the property was sold by the defendants no.1 & 2 to Ram Rakhi and Hari Chand Kumar. The plaintiffs have claimed themselves to be the son and daughter in law of the original vendees and there is also no dispute and there is sufficient evidence to show that the plaintiffs are owners of the property. The sale deed of the property have been placed on record which proves the ownership of their parents and consequently of their own. On the contrary it is not the case of the defendants that some other person is the owner of that property or that plaintiffs are not their legal heirs. Moreover the right of the plaintiff in the lofty is also not in disputed. In this way, this issue is decided in favour of the plaintiffs. Issue No.2 Whether the portion shown at mark C is the common passage up to lofty(miani) as alleged in prayer clause? OPP.
Plaintiffs alleges that the passage shown as mark C in the site plan is the common Suit No.637/93 7 passage. The case of the defendants is that when H.No. 5S (909) Kidar Building, Subzi Mandi was sold to Ram Rakhi and Hari Chand Kumar, this passage was not sold to them. This passage was not included in the property sold to them by virtue of sale deed Ex.P1 and according to the plaintiffs this sale deed Ex.P1 clearly proves that the passage shown as common passage by the plaintiffs marked as C in the site plan was sold through this sale deed.
I have gone through this sale deed Ex.P1. There is a map attached with this sale deed. According to the case of the defendants, the plan of the property was attached with the sale deed and the boundaries of the property sold were clearly mentioned as under: North Passage of owner's building South Main Bazar East Common Passage West Portion of Sh. Balkrishan Om Parkash.
According to the defence counsel this owner's passage shown towards North in the map of sale deed Ex.P1 is the land which is shown as common passage by the plaintiffs. In the sale deed itself this portion which the plaintiff is alleging as a common portion has been shown as "Owner's Building". The owner of the property was defendants no.1 & 2 and they sold the property to the parents of the plaintiff. Therefore, the defendants no.1 & 2 according to the construction of this sale deed are the owners of the common passage and it was not sold to them.
Therefore I agree with the contention of the counsel for defendant that from the construction of the map of the sale deed, it cannot be said that the common passage was sold to the plaintiffs in this case and therefore, the plaintiffs are not the owners of the common passage.
Not only this, the plaintiffs have not claimed themselves as the sole owners of this Suit No.637/93 8 common passage. They say that they are the coowners alongwith the defendants of this common passage. The property before it was sold to the parents of the plaintiffs was owned by the defendants. It appears that the portion of the property was sold to the parents of the plaintiff no.1. Therefore, the defendants remained the owner of the property which is not sold to the parents of the plaintiff no.1. This passage even according to the case of the plaintiff was not sold to the parents of the plaintiff no.1 neither it is shown as common passage in the sale deed. Therefore, according to the plain construction of this sale deed, defendants no.1 & 2 remained the owner of the passage shown as common passaged by the plaintiff.
This claim of coownership by the plaintiffs is also contradictory to their averments that they have easementary right on this common passage. The concept of easementary right cannot go with the claim of title and both are contradictory to each other. One is the right to possess, enjoy and use the land in assertion of that right and to the exclusion of other while a right of easement is a right in, to or over the property of another. An easementary right can be claimed upon the property of some other person and not upon the property which a person claims to be in his ownership.
Not only this the plaintiff himself has admitted in his cross examination that the portion shown as common passage was not sold to his parents but it was given to his parents as passage for ingress and egress only.
Therefore, on these grounds, the plaintiff cannot be considered as the owner of the property which is not sold to them. In view of these findings, this issue is decided against the plaintiffs.
Issue No.3 Whether the plaintiff is entitled for the decree of permanent injunction as prayed in prayer clause? OPP.
The relief of perpetual injunction is granted to any person to prevent the breach of an Suit No.637/93 9 obligation existing in his favour expressly or by implications. It is the case of the plaintiffs that there is a legal obligation upon the defendants not to create hindrances in the use of the stairs in the so called common passage which leads to the lofty (miani) situated in his property. These obligations is asserted on three counts;
1. Ownership But while deciding issue no.2, it has already been decided that plaintiffs are not the owner of the passage shown by them as common passage in the site plan P2.
2. Easement by prescription It is averred in the plaint that the plaintiffs have been using the stairs in the common passage from 7/8 May 1979 i.e. continuously for a around 12 years before the filing of this suit. It has been argued by counsel for defendants that even if the averments of the plaintiffs are accepted as true even then the plaintiffs have not acquired any right by virtue of prescription. The reason being that for claiming easement by prescription the plaintiffs were required to plead and prove that they had been enjoying the easement as of right for a period of 20 years and that the enjoyment had been continuous and uninterrupted. The case of the plaintiffs are that they have been using the stairs of the common passage from the year 1979 till the suit was filed in the year 1993 which means that according to the plaintiff's case they had been using the staircase in the common passage for only 12 years before the filing of the suit, which is not sufficient for claiming prescriptive easementary rights. I agree with the contention of the defence counsel that for claiming an easementary rights by way of prescription as provided under section 15 of the Easement Act, the plaintiffs have to prove the uninterrupted use of the servient heritage for 20 years which is neither averred nor proved in the present case. Therefore, the theory of the plaintiff of acquiring the right by way of prescription also vanishes.
3. Easement by necessity Thirdly, it was argued by plaintiff's counsel that the plaintiff Suit No.637/93 10 has no alternative passage to go to the lofty (miani) situated on the rear side of his house and there is no alternative passage leading to this miani from the house of the plaintiff. The only passage or approach to the lofty (miani) and the sanitary drainage system is through the common passage shown as C in the site plan. One of the arguments of defence counsel is that easement of necessity is not pleaded by the plaintiffs in this case. But I am of the view that, upon the holistic reading of the pleadings of the plaint, it is an alternative case of the plaintiffs that the plaintiffs do not have any other approach to the lofty (miani) and this amounts to easement of necessity. There is no bar for pleading an alternative case in the plaint and besides the ground of coownership and easement by prescription I am of the view that the plaintiffs have also asserted their easement by way of necessity and this this claim of easement by necessity will not prejudice the defendants in this case.
Easement of necessity is defined in section 13 of Indian Easement Act, 1882, and clause (a) of the same is relevant in the present case, which reads as under;
"13 Easements of necessity and quasi easementsWhere one person transfers or bequeaths immovable property to another,
(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer of bequest, the transferee or legatee shall be entitled to such easement; or.................
An illustration is provided in the book "The law of Easement" Amin & Sastri page 238 fifth edition(relied by plaintiff in his written arguments) to this effect that "if the owner of the certain field irrigates his entire field by taking water from a well situated within the field, sells a part of the field not containing the well, but retains a part containing the well, the question would naturally arise whether the purchaser has a right to take water from the vendor's Suit No.637/93 11 well to irrigate his part. If the parties have settled this question by specific mention in the deed of conveyance, their common intention as so expressed must be given effect to. But if the deed of conveyance contains no reference to this point, law would grant to the purchaser of the part heritage an easement in favour of the said part heritage to take water from the well situated in the other part heritage retained by the vendor".
Therefore, the seller cannot compel the purchaser to dig a well for the purpose of irrigation in his own field and cannot restrain him from using the same.
It has been held in the case of Maniyan Krishnan and another Vs. Maniyan Nanukuttan AIR 1986 Kerala 75 that;
"Easement of necessity arises on the severance of tenements. The rationale or the legal basis of this kind of easement can be traced to the creation of an implied grant. Really, easement of necessity is an easement, which under particular circumstances the law creates by virtue of the doctrine of implied grant to meet the necessity of a particular case. As far as the Indian Law is concerned the contours of this doctrine of implied grant to create an easement of necessity are well delineated in the action itself. It has to be remembered that it is an easement which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one without which that tenement cannot be used at all. Such easement arises where normally both the dominant and servient tenement have been in common ownership so that the creation of an easement by implication of law may be said to be the outcome of the former jointness of the two tenements. The disposition which causes a cessation of the common ownership that gives rise to the creation of an easement may be of either tenement, or a simultaneous disposition of both tenements".
In the present case, the property under the ownership of the plaintiffs was sold to the parents of plaintiff no.1 by defendants no.1 & 2 alongwith Rajinder Kumar Jain as half flat Suit No.637/93 12 no.909 5S, Kidar Building, Subzi Mandi Delhi. It means that the portion sold to the plaintiffs were sold to them by defendants no.1 & 2 and the servient heritage i.e. common passage in the present suit is still the property of defendants no.1 & 2. According to section 13 clause 'a' if an easement in the other immovable property of the transferor is necessary for enjoying the subject of the transfer the transferee shall be entitled to such easement. As per pleadings, the defendants no.1 & 2 are one of the transferors and the plaintiffs are the LRs of the transferee. Therefore, according to this section the transferee i.e. the present plaintiffs have a right to claim easementary right of passage from the so called passage C which is under the ownership of defendants no.1 & 2.
It has been argued by the counsel for defendants that the plaintiffs can provide a passage to lofty (miani) from their own property and therefore, the easementary right by way of necessity cannot be claimed by the plaintiffs.
The term easement of necessity is one without which the property retained upon the severance cannot be used at all; it is not one which is merely necessary to the reasonable enjoyment of that property. In Halsburry's Law of England, 4th Edition volume 14, page 12 para 29 easement of necessity is defined as "An easement of necessity is easement which under particular circumstances, the law creates by virtue of doctrine of implied grant to meet the necessity of a particular case. It is an easement which is not merely necessary for the reasonable enjoyment of the dominant tenement but one without which that tenement cannot be used at all. It is a settled law that an easement of necessity can be claimed only when there is an absolute necessity for it and not when it is necessary to the reasonable enjoyment of the dominant heritage. A mere convenience does not come within the definition of easements of necessity. Therefore, what is to be seen in the present case is whether the stairs leading to the lofty Suit No.637/93 13 (miani) for which the easement of necessity is claimed is absolute necessity for the plaintiffs or there is an alternative way leading to the lofty (miani). It is an undisputed case of both the parties that at present there is only one way which leads to the lofty (miani) and that is through the stairs in the passage marked as C in the site plan P2. The case, the pleadings as well as the evidence of the defendant is that the plaintiffs do not have any right to use the stair in the common passage C but it is not the case of the defendant that their exists an alternative passage to this lofty (miani) and that the plaintiff is demanding this right only on the basis of convenience to reach the lofty (miani) from this passage. The defendant wants that the plaintiff should make alteration in his own property in such a way so as to provide a passage to the lofty (miani) and the only thrust of the defendant against the plaintiff claiming the easement of necessity is this.
In this case the Sh. I.V. Gupta who was appointed as local commissioner has also, after inspection of the site reported that the portion shown as common passage in the site plan as red contains drainage system, sewage system and entrance to lofty(miani) of plaintiff and other neighbours. Lofty (miani) has no other entrance.
In the present case, it appears that the passage on which the easementary right claimed by the plaintiffs is absolute necessary for them to approach the lofty (miani). There is no other way leading to it and therefore, the question of mere convenience will come into play when there is an option or there is an alternative to the servient heritage upon which the easementary right is claimed. This is no answer to the claim of the plaintiffs that the defendants can provide for an alternative passage to the lofty (miani) from their own building. Therefore, on the basis of aforesaid discussions, the claim of the plaintiffs regarding the easement of necessity is proved as it is proved that there is no alternative way to reach the lofty (miani) except the open passage under the ownership of the defendants.
Suit No.637/93 14
It has been duly proved on the records of the case that there is no access to the lofty (miani) for the plaintiffs. Not only this when the defendants sold the property to the parents of the plaintiffs at the rear side of their portion and the only passage to it is through the stairs under their ownership, the right of the user of the said staircase is also given to the plaintiffs by way of an implied grant.
It is also difficult to understand that how the defendants could have sold the lofty to the parents of plaintiff no. 1 without a passage to it.
Therefore, on the basis of the aforesaid discussions this issue is decided in favour of the plaintiffs.
Issue No.4 Relief.
The plaintiff has sought the relief of perpetual injunction praying that the defendants, their agents be restrained from creating any hindrances, impediments in the free movement and use of the common passage marked as Mark C in the site plan Ex.P2. It is already held while deciding issue no.3 that the plaintiffs are entitled for the relief of perpetual injunction on the basis of easement of necessity. It is already held that the plaintiffs are not the owners of the common passage marked as Mark C and they shall only be entitled to use the same for ingress and egress to the lofty(miani) only.
The defendants are therefore restrained from creating any kind of hindrances or obstruction in the use of passage having the staircase in the plaintiff's use which leads to the lofty (miani). The suit is accordingly decreed with cost.
Announced in the open Court (SAMAR VISHAL)
On 30.07.2010 Civil JudgeII
(North)/Delhi
30.07.2010
Suit No.637/93 15
30.07.2010 Suit No.637/93
Present: Sh. Anurag Kumar Counsel for plaintiff..
Vide separate judgment, the suit of the plaintiff has been decreed. Decree sheet be prepared accordingly.
File be consigned to the record room.
(SAMAR VISHAL) Civil JudgeII (North)/Delhi 30.07.2010 Suit No.637/93 16